Patterson v. McLean Credit Union

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491 U.S. 164 (1989), argued 29 Feb. 1988, reargued 12 Oct. 1988, decided 15 June 1989 by votes of 9 to 0 on one major issue and 5 to 4 on another; Kennedy for the Court; Brennan, Marshall, and Blackmun concurring in the judgment in part and joining in part in a dissent by Brennan; Stevens concurring in the judgment in part and dissenting in part. Patterson formally involved the question whether an African-American woman's claim of racial harassment in employment stated a cause of action under Title 42, section 1981 of the U.S. Code, a surviving portion of the Civil Rights Act of 1866. In Runyon v. McCrary (1976) and Jones v. Alfred H. Mayer Co. (1968), section 1981 and a companion provision had been interpreted to reach private racial discrimination in contractual and property relations. After the initial argument, the Court, on its own motion, ordered a reargument and requested that the parties address the question whether Runyon's interpretation of section 1981 should be over-ruled. Patterson thus seemed on the verge of becoming a landmark case reversing the prior twenty years’ practice of applying the 1866 act's modern counterparts to cases involving private discrimination.

Few procedural orders in the Supreme Court's history have caused such a volatile reaction. Within the Court, the reargument order itself prompted sharp dissents from Justices Harry Blackmun and John Paul Stevens, both joined by Justices William Brennan and Thurgood Marshall. These dissents moved the majority to take the unusual steps of defending a reargument order in writing. The civil rights community, the press, and scholarly journals focused intense attention on the pending case.

After the second argument, relying on the doctrine of stare decisis, the Court unanimously declined to overrule Runyon. But, in an unprecedented interpretation of section 1981 that prompted four dissents, the Court held that the right to make contracts does not extend to conduct by an employer after establishment of the contractual relation, including Patterson's claim of posthiring racial harassment. Congress reacted to Patterson and other decisions by passing the Civil Rights Act of 1991, which overruled Patterson's narrow reading of section 1981.

Theodore Eisenberg

Subjects: Law.

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